IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Paul Lane, 

 :

Plaintiff, Case No. 2:11-cv-0966

:

v. 

: Magistrate Judge Kemp

City of Pickerington, et al., 

:

Defendants. 

 OPINION AND ORDER

This matter is before the Court on two motions in limine

filed by defendants the City of Pickerington Personnel Appeals

Board and the City of Pickerington. Specifically, currently

before the Court for consideration are the defendants’ motion in

limine to exclude evidence of economic damages (Doc. 66) and the

defendants’ “motion in limine concerning additional predeprivation claim” (Doc. 71). The latter motion relates to

whether plaintiff Paul Lane is entitled “to raise an additional

claim for an alleged violation of his procedural Due Process

rights based on the alleged charges of sexual harassment.” (Doc.

71 at 1). Also before the Court is Mr. Lane’s motion for an oral

argument pursuant to Local Rule 7.1(b) or, in the alternative,

motion for leave to file a sur-reply. (Doc. 76). For the

reasons set forth below, the defendants’ motion in limine to

exclude evidence of economic damages will be granted in part and

denied in part (Doc. 66), and the defendants’ “motion in limine

concerning additional pre-deprivation claim” will be denied (Doc.

71). Mr. Lane’s motion for an oral argument pursuant to Local

Rule 7.1(b) or, in the alternative, motion for leave to file a

sur-reply will be granted. (Doc. 76). More specifically, the

motion will be granted to the extent that Mr. Lane seeks leave to

file a sur-reply, and the arguments raised in the motion will

constitute his sur-reply and will be considered by this Court in

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ruling on the pending motions. 

I. Background

On October 28, 2011, plaintiff Paul Lane filed a complaint

in this case against defendants the City of Pickerington

Personnel Appeals Board, the City of Pickerington, Mayor Mitch

O’Brien, former interim city manager Michael D. Taylor, and

former personnel director Linda Fersch seeking compensatory

damages and equitable relief under 42 U.S.C. §1983, the

Constitution of the United States, the Ohio Constitution, Article

II, Section 34 and Article XV, Section 10, and the common law of

the State of Ohio. (Doc. 2 at 2). In a decision issued on

August 20, 2013, Magistrate Judge Abel, the Magistrate Judge

originally assigned to this case, summarized that complaint as

follows:

This lawsuit arises out of Pickerington firing Paul

Lane in November 2009 from his job as an inspection

administrator for having pornographic images on his work

computer. The complaint pleads that defendants knew the

charge was supported by false or insufficient information

to justify termination of Lane’s employment. It also

pleads that defendants terminated Lane’s employment in

retaliation for his association with and support of

former City Manager Timothy Hansley, who was fired just

days before Lane. Lane sought a post-termination hearing

before the Pickerington Personnel Appeals Board (“PAB”),

but Pickerington denied the request, maintaining that he

was an unclassified director level employee. Following

lengthy litigation, the PAB determined that Lane was

classified employee, heard his appeal, and reduced his

termination to a 30-day suspension. 

The complaint pleads claims for unlawful retaliation

for protected speech, failing to provide post-deprivation

due process, and defamation. 

(Doc. 51 at 1-2)(footnotes omitted). Magistrate Judge Abel

further noted that Mr. Lane withdrew his retaliation claim and

defamation claims against defendants Linda Fersch and Mitch

O’Brien, but Mr. Lane continued to assert defamation claims

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against defendants Taylor and the City of Pickerington. Id. at

2.

Before the Court on August 20, 2013 was a motion for summary 

judgment filed by the Pickerington Personnel Appeals Board and

the City of Pickerington, a motion for summary judgment filed by

individual defendants Mitch O’Brien, Michael D. Taylor, and Linda

Fersch, and a motion for partial summary judgment filed by Mr.

Lane. In resolving the motions, Magistrate Judge Abel first

determined that Mr. Lane “received all the process to which he

was entitled.” (Doc. 51 at 32). Consequently, Magistrate Judge

Abel granted summary judgment to Defendants on Mr. Lane’s claim

based on violations of his procedural due process rights. 

Magistrate Judge Abel likewise granted summary judgment to

Defendants on Mr. Lane’s defamation claim.

Mr. Lane appealed Magistrate Judge Abel’s decision to the

Court of Appeals. On November 14, 2014, the Court of Appeals

issued an opinion and order affirming in part, reversing in part,

and remanding the case for proceedings. The Court of Appeals

referred to the following relevant facts from Magistrate Judge

Abel’s decision:

On August 30, 1999, Paul Lane began working for

Pickerington as a construction inspection supervisor. In

2002, he was demoted to construction inspector. 

Beginning informally in November 2004 and officially in

November 2005, Lane was an inspection administrator.

City manager Tim Hansley was Lane’s boss. Although

Lane would call Hansley a friend, they did not see each

other often outside the work environment. Hansley was

fired October 20, 2009. Shortly before he was fired,

Hansley met with Lane and four other employees and told

them that the mayor, Mitch O’Brien, wanted him to fire

them. Lane believes that Hansley was fired because he

refused to fire them. Defendant Linda Fersch,

Pickerington’s personnel director, told the five not to

worry, there were always rumors. Lane testified that

Hansley was a good city manager and should not have been

fired.

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On October 22, 2009, police chief Michael Taylor’s

first day as acting city manager, he told Eric Vannatta

to search Lane’s computer. Taylor testified that he

ordered Lane’s computer searched because “there was a

rumor that certain city employees Lane, Steve Carr, and

George Parsley were removing erasing [sic] public

documents from their computers.” He could not recall who

he heard the rumor from. He testified, “The rumor was

Tim Hansley was saying these people ... were removing

public documents from their computers.”

Vannatta suffered a stroke in 2010 that has

eliminated his memory of many events over the 25 years

before the stroke. He has little recollection of the

search. He does not remember what he was searching for

or how he used Recuva software during the search. He

does recall burning a copy of the pornographic images

found on the computer to a CD. Almost all the images

were from June 27 and 30, 2005, some four and one-half

years before the search. Vannatta wrote a one-sentence

October 23, 2009 memo to Taylor: “After using specialized

software to retrieve images from Paul Lane’s computer, it

was noted that pornographic images were present on the

hard drive.”

Several weeks later, Vannatta used Recuva software

to inspect George Parsley’s computer. Lane and Parsley’s

computers were the only two computers Vannatta ever

inspected during his career with Pickerington.

Taylor testified that Vannatta told him he found no

evidence any public documents were being erased from the

searched computers. But Vannatta said he found around 30

pornographic images and “he found numerous sites where-

–numerous listings on the computer where Paul went to

look at pornography.” Taylor further testified that

Vannatta said there was a device on the computer that

meant that what Lane was doing on the computer didn’t get

stored on the hard drive.

City policy prohibits viewing pornography on city

computers. The city’s internet guidelines prohibit using

a computer to view pornographic, obscene, and sexually

oriented images.

At approximately 8:20 a.m. on October 29, 2009,

Taylor gave Lane a predisciplinary notice of an October

30 predisciplinary hearing. Lane was not told that he

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might be terminated or that he had the right to be

represented by an attorney at the hearing.

Taylor held the predisciplinary hearing which began

at 10:00 a.m. on October 30, 2009. Personnel director

Fersch was present, but did not participate. Taylor

asked Lane to explain the pornography found on his

computer. Lane asked to see the images found on his

computer, and Taylor refused to show them to him. Lane

testified that he told Taylor that he did not put

pornography on the computer. He further told Taylor that

“if there are any images, the only way I am aware there

could be any would be from checking my personal email. 

You open something from a buddy and it’s an off color

joke and a picture of boobs.... I’m not aware of ever

opening up any emails on my work computer.” Although his

computer was password protected for login, Lane testified

that anyone could access his computer during the work day

because he was often out of his office and his computer

was on from 6:00-6:30 a.m. to 5:00-6:00 p.m.

During the hearing, Taylor told Lane he had the

option of resigning or being fired. Lane testified that

Taylor him that he could resign and receive a good

recommendation. Lane asked to consider the offer over

the weekend. On Monday, Lane told Taylor he would not

resign. Taylor testified that he alone made the decision

to fire Lane for looking at pornography on a work

computer.

On October 30, 2009, probably after the

prediciplinary hearing, Taylor asked the Sgt. Gene Delp

to witness Eric Vannatta examine Lane’s computer. 

Vannatta ran a program to search for deleted files and

printed out a list of those files. Vannatta told Delp he

was looking for pornography. Delp’s recollection was

that Vannatta found some cookies from pornography sites

and history of internet visits to those sites. However,

he did not include those findings in his report to

Taylor, and that type of finding should have been

included in the report. Vannatta found U2 software on

Lane’s computer, which could have been used to run a web

browser and other software without using the computer’s

hard drive. A Google Chrome browser was also installed

on the computer. That browser would permit the user to

browse the internet anonymously without creating any

entries on the internet history file.

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Delp reported to Taylor that Vannatta found

pornographic images that appeared to come from

pornographic websites. Taylor told him to write a

summary report. Delp wrote a report either that day or

the next. That report reads, in relevant part:

Eric Vannatta provided computer tools which

would recover deleted files, and showed me how he

had used this software to recover appx. 30 files

which indicated the computer had been used to

access pornography over the internet. The files

were still in the computer’s hard drive, and were

again located by the software provided by Eric

Vannatta among 42,000 images which had been deleted

from the computer. The pornography files were

located in the Internet Explorer 5 temporary files

and dated in 2005. The location of the files is

consistent with files stored during the use of

Internet Explorer. This is contrary to the claim

from Mr. Lane that the files were delivered to his

computer in an email. The history of Internet

Explorer was set to save the internet browsing

history for 999 days; however the only history on

the computer was from seven days prior to his predisciplinary meeting with Chief Taylor. I would

conclude that Mr. Lane had cleaned the computer

prior to examination by Eric and me.

I also discovered that “U-3" software had been

installed on the computer. This software is

included on some thumb drives and allows for

applications to be run directly from the thumb

drive. These applications can include internet

browsers, on-line chatting software, video players,

etc. and can access the internet without leaving

any trace on the computer hard drive. Mr. Lane

also had Google Chrome installed on his computer. 

This program is an internet browser capable of

running in “Incognito Mode.” This mode allows the

user to browse the internet without saving any

history or temporary files to the computer’s hard

drive. 

On November 5, 2009, Lane picked up from personnel

director Fresch a letter terminating his employment. 

Lane believes he may have been fired because he was

perceived to be “too close to Tim” Hansley. Plaintiff

has proffered no evidence supporting that speculation.

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On November 2, 2009, Taylor issued a letter

terminating Lane that was [allegedly] based on false

and/or misleading statements made by Fersch and others. 

On November 17, 2009, Lane submitted a request for

hearing before the Personnel Appeals Board. Defendants

notified plaintiff that he was not a classified employee

and that the PAB did not have jurisdiction over his

appeal. Lane was [allegedly] denied his right to due

process because defendants failed to comply with Section

9.03 of Pickerington City Ordinances. Defendants

[allegedly] violated their clear duty to provide Lane

with post-deprivation due process to conduct a hearing

and to issue a determination on the merits of his appeal.

....

Lane testified that he was defamed by a newspaper

article that said he admitted possession of pornography

and because “[he] was on 10TV.”

On December 4, 2009, Taylor wrote a letter to the

Ohio Bureau of Unemployment Compensation in response to

a question asking for “additional information you might

have significant to the separation.” The letter stated,

in relevant part:

When Paul’s computer was checked, it was

determined that there was 40,000 “hits” on the

computer where he went to the Internet looking at

various things and approximately 30 pictures were

pornographic. When questioned, Paul admitted to

looking at the pictures but stated that he was just

checking his home E-mail at work, and when he

opened the mail, it was determined to be

pornographic. (30 different times?) If so, why not

erase from the computer once determined? Also, he

was using different software to access the sites

(to avoid a record on the hard drive), which was

not authorized. It was determined later this was

not accurate, as the site had to be directly

accessed, see enclosed print out of the internet

site and photo.

Additionally, in regards to sexual harassment

with other employees. He made comments alleged

about masturbation to a female employee, made an

alleged sexual comment to another employee her

breasts [sic], and was allegedly changing pants in

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his office with the door opened and was witnessed

by yet another female, and his comment was it was

ok, I have boxer shorts on.

Paul also made for somewhat of an

uncomfortable, non-conducive work atmosphere. He

allegedly would change into exercise clothes while

at work, he pushed open the bathroom door of the

men’s room to witness other men going to the

restroom. He allegedly invaded the female

employees’ personal space by walking right up to

them or walking up behind them.

I interviewed several different employees and 

received the same comments about Paul Lane. He

would leave the office, stay gone for hours at a

time, not come in until late and not advise anyone. 

It was difficult to schedule appointments, as the

secretary would not know where he was or when he

would be in many times. I also determined no one

really knew what he did for a job. I questioned 5-

6 people and they couldn’t advise what he really

did. Although he was the “Building Administrator”

he did very few if any administrative duties.

As for prior discipline, he received none due

to the two past city managers would not administer

discipline. Numerous complaints were taken to the

two previous city managers and no action was taken,

not even any documents in his file.

Upon initial complaints about Paul, I found

them to be sustained. The female workers were on

edge, and felt very uncomfortable working with him. 

One female employee was so concerned, she felt she

should go outside and around the building through

the back door to the restroom to avoid walking past

his office.

After talking to numerous people, I determined

there was a atmosphere created by Paul that was non

conducive to a good working environment. Changing

clothes in an office that was witnessed by female

employees, making sexual comments to a female

employee, invading personal space, making comments

about a female’s breasts to her, all this hardly

constitutes a health [sic] work environment. I

consider the city fortunate a sexual harassment

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suit was not imposed by the female workers of the

city due to lack of action on two prior city

managers’ actions.

(Doc. 54 at 2-6) (footnotes omitted).

 The Court of Appeals added the following regarding the

procedural history of the case:

The Notice of Predisciplinary Conference states that

the alleged offense was “Violation of Technology, Section

2; unacceptable and personal use,” and the summary of

charges states “Prohibited use of the internet for

viewing and retaining pornographic materials on city

computer. Misuse of city property in an inappropriate

and offensive manner.”

On December 1, 2009, Phillip Hartmann, the Law

Director of the City of Pickerington, responded to Lane’s

request for a hearing before the Personnel Appeals Board

with a letter stating that Lane was an unclassified

employee and the Personnel Appeals Board had no

jurisdiction to hear his appeal. In 2010, Lane filed a

writ of mandamus with the Ohio Fifth District Court of

Appeals demanding that Defendants be ordered to issue a

determination on Lane’s request for a hearing and a final

appealable order. It was denied. On October 27, 2011,

the Ohio Supreme Court ruled that the letter issued by

the City of Pickerington Law Director did not provide an

adequate remedy at law for Lane because the letter was

not a final, appealable order from or on behalf of the

City of Pickerington Personnel Appeals Board. On January

27, 2012, the Fifth District Court of Appeals issued a

mandamus directing the Personnel Appeals to issue a

determination on Lane’s request for a hearing. The

City’s Personnel Appeals Board conducted a hearing to

determine whether Lane was a classified employee at the

time of his termination on May 10, 2012. On May 29,

2012, the Board determined that the City failed to

demonstrate that Lane was unclassified. On November 29,

2012, Lane was given a hearing before the Board on the

merits of his termination. The Board upheld the finding

of a violation of city policy, reversed the decision to

terminate Lane’s employment, modified the termination to

a 30-day suspension, and ordered that Lane be reinstated

to a non-supervisory position for which he was otherwise

qualified. The Board’s order is currently on appeal to

the Fairfield County Court of Common Pleas.

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The district court granted summary judgment in favor

of the City of Pickerington and the Individual

Defendants.

Id. at 6-7 (footnotes omitted). 

In reviewing the Judge Abel’s decision to grant summary

judgment, the Court of Appeals first disagreed with Judge Abel’s

finding that Mr. Lane failed to plead pre-deprivation due process

allegations in the complaint. Stated differently, the Court of

Appeals disagreed with Judge Abel’s finding that Mr. Lane’s

complaint contained only facts related to post-deprivation due

process. Consequently, the Court of Appeals considered both Mr.

Lane’s pre-deprivation due process claim, as well as his postdeprivation claim. The Court of Appeals next found no dispute

that Mr. Lane had a property interest in his job. Thus, the

Court of Appeals focused its inquiry on what process was due. 

In examining Mr. Lane’s pre-deprivation claim, the Court of

Appeals found that Mr. Lane was not provided with a

constitutionally adequate pre-termination hearing. As to Mr.

Lane’s assertion that his post-deprivation hearing violated due

process because it was untimely, the Court of Appeals found that

the process Mr. Lane received was not just delayed, “it was

ongoing.” (Doc. 54 at 15). Thus, the Court of Appeals agreed

with Judge Abel that “the delay in receiving a post-termination

hearing in this case did not violate Lane’s constitutional

rights.” Id. 

Turning to the City of Pickerington, the Court of Appeals

observed that, because Judge Abel found no constitutional

violation, his decision did not reach the issue of whether

respondeat superior precludes municipal liability for the City of

Pickerington in this case. In examining this issue, the Court of

Appeals first noted that, under Monell v. New York City

Department of Social Services, 436 U.S. 658 (1978), a

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municipality may be liable for the acts of its employee under 42

U.S.C. §1983 where the “acts may be fairly said to represent

official policy.” (Doc. 54 at 15), quoting Monell, 436 U.S. at

694. Based upon this principle, the Court of Appeals concluded

that summary judgment based on Monell is “inappropriate” in this

case because “Taylor, the City Manager, appears to have been the

final decision maker when dealing with city employees.” Id.

The Court of Appeals next turned to the argument raised by

individual defendants O’Brien, Taylor, and Fersch that they are

entitled to qualified immunity, “which protects government

officials performing discretionary functions from civil liability

under §1983 unless their conduct violates ‘clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Id. at 16, quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The Court of Appeals stated:

Their sole argument is that they infringed no clearly

established right because no reasonable official would

have known that terminating Lane, after notice, for

viewing pornography was impermissible. This argument

conflates the clearly established procedural right at

issue with the reason for the termination, and ignores

the patent inadequacy of the notice. Although the

Constitution does not require an ‘elaborate’ predeprivation hearing, it required Defendants to provide

Lane “a meaningful opportunity to tell his side of the

story” before he was fired. Loudermill, 470 U.S. at 545-

46. A reasonable official would have known that Lane was

entitled to view the evidence against him. Additionally,

a jury could find that Lane was terminated based on

allegations not contained in the notice of the predisciplinary conference; a reasonable official would thus

have known the notice was constitutionally inadequate.

Id. Based on the foregoing, the Court of Appeals did not find

that the individual defendants are entitled to dismissal based on

qualified immunity.

Finally, the Court of Appeals determined that Mr. Lane

failed to allege a sufficient defamation claim under Ohio law. 

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The Court of Appeals found that Magistrate Judge Abel correctly

determined that the only defamation allegation pleaded in the

complaint was based on false and misleading information in Chief

Taylor’s letter terminating Mr. Lane’s employment. The Court of

Appeals noted that, even assuming that other allegedly defamatory

statements made by Chief Taylor were properly before it, the

defamation “claim is barred by qualified privilege.” Id. at 16. 

The Court of Appeals explained that qualified privilege may be

overcome only if the claimant proves that the publisher acted

with “actual malice,” which it defined as “acting with knowledge

that the statements are false or acting with reckless disregard

as to their truth or falsity.” Id. at 17. In this case, the

Court of Appeals found that Mr. Lane failed to demonstrate that

Chief Taylor’s statements were false or made with reckless

disregard of their falsity. The Court of Appeals stated:

First, Taylor’s statement that Lane admitted to

looking at pornography on city computers was

substantiated by Lane’s deposition testimony that “if

there are any images, the only way I am aware that there

could be any would be from checking my personal email. 

You open up something from a buddy and it’s an off-color

joke and a picture of boobs . . . . I’m not aware of ever

opening up any emails on my work computer.” In an

investigation summary from Sgt. Matt Delp and in a

memorandum from Eric Vannatta, who were charged with

searching Lane’s computer, the material on Lane’s

computer was described as pornographic, and there is no

dispute that there were approximately thirty pictures on

Lane’s computer that Taylor viewed as pornographic. 

Moreover, the search of Lane’s computer revealed that the

“pornographic” images on the hard drive had been accessed

by going to a website, not via email, and that software

had been installed on the computer to allow Internet

browsing without leaving any trace on the computer hard

drive.

Taylor’s statement that Lane created a hostile

working environment was substantiated by Lane’s own

testimony, admitting that he participated in

conversations about naming women’s breasts and telling a

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masturbation joke, and that he told a woman wearing a

sheer blouse that he could see her nipples. Further,

Taylor received four statements from female employees

complaining of sexual harassment by Lane. Among these

was a statement from a woman saying that she observed a

copy of a Playboy article on sex and sexuality left on

the copier that was later picked up by Lane. Taylor

testified that this is what he was referring to when he

stated that Lane’s viewing of pornography created a

hostile work environment.

Finally, the district court correctly noted that a

newspaper article written by Nate Ellis states: “Taylor

declined to elaborate on the alleged material but

disagreed with Lane’s assertions,” and only attributes

one statement to Taylor: “Clearly, it was pornographic.”

Lane has failed to show that Taylor made the allegedly

defamatory statements with “a high degree of awareness of

their probable falsity” or entertained serious doubts as

to the truth of his publication.

Id. at 17-18. Thus, the Court of Appeals determined that the

qualified privilege applies. 

Based on the foregoing, the Court of Appeals affirmed Judge

Abel’s grant of summary judgment to defendants on Mr. Lane’s

post-deprivation due process claim and Ohio defamation claim. 

However, the Court of Appeals reversed Judge Abel’s award of

summary judgment to defendants on Mr. Lane’s pre-termination due

process claim and remanded the case for further proceedings

consistent with its opinion.

On February 9, 2015, Magistrate Judge Abel held a telephone

conference in this case. After that conference, Magistrate Judge

Abel issued an order stating, inter alia, that “Plaintiff reads

the Court of Appeals’ decision as holding he was denied pretermination due process. Defendants believe that even if that is

so, there are significant legal issues regarding remedies and

fact issues regarding damages.” (Doc. 56 at 1). In the order,

Magistrate Judge Abel stated that he was leaving the bench on

March 2 and, as such, noted counsel’s request that “the new

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magistrate judge assigned to the case meet with them to discuss

these and other issues.” Id. at 2.

On March 2, 2015, this case was reassigned to the

undersigned Magistrate Judge for all further proceedings. (Doc.

59). Mr. Lane filed a motion to reassign the case to the

District Judge upon the retirement of Magistrate Judge Abel (Doc.

57), but the District Judge denied Mr. Lane’s motion (Doc. 65). 

Consequently, this action remains pending before the undersigned

Magistrate Judge for decision.

On May 6, 2015, defendants the City of Pickerington and the

Personnel Appeals Board filed a motion in limine to exclude

evidence of economic damages. (Doc. 66). On May 19, 2015,

individual defendants Ms. Ferch and Mr. O’Brien filed a motion

for summary judgment. (Doc. 67). This Court held a status

conference on May 19, 2015 and issued an Order regarding that

conference the following day. In the Order, the Court noted that

the defendants will file a second motion in limine dealing with

whether Mr. Lane would be permitted to present evidence of a

second, separate pre-deprivation due process violation, involving

issues of alleged sexual harassment of co-workers, to the jury,

and whether the jury would be permitted to find a separate

constitutional violation should the facts warrant it. The Court

also stayed the briefing on the motion for summary judgment

pending a ruling on the two motions in limine. The Court added

that Mr. Lane may file a motion for summary judgment based on the

Court of Appeals’ decision, but stated that “no additional

proceedings will occur until the Court has ruled on the two

motions in limine and the parties have determined if that ruling

provides as basis for settlement discussions.” (Doc. 68 at 1). 

Mr. Lane filed a motion for summary judgment on May 26, 2015. 

(Doc. 69). Thereafter, the following were filed: a trial brief

on remaining issues by Ms. Ferch, Mr. O’Brien, and Chief Taylor

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(Doc. 70); a motion in limine regarding damages and additional

deprivation claim by the City of Pickerington and the Personnel

Appeals Board (Doc. 71), a response in opposition to the motion

for summary filed by Ms. Ferch, Mr. O’Brien, and Chief Taylor

(Doc. 72), a response in opposition the motions in limine (Doc.

73), and a reply in support of Mr. Lane’s motion for summary

judgment (Doc. 74). Finally, Mr. Lane filed a motion for oral

argument or, in the alternative, leave to file a sur-reply to the

motions in limine. (Doc. 76). The Court now considers Mr.

Lane’s motion for oral argument or, in the alternative, leave to

file a sur-reply and the motions in limine.

II. Discussion

The Court first examines Mr. Lane’s motion for oral argument

or, in the alternative, leave to file a sur-reply. (Doc. 76). 

Local Rule 7.2, which governs the submission of motions and other

papers, provides for the filing of opposing memoranda and

replies, but states that “[n]o additional memoranda ... are

permitted except upon leave of court for good cause shown.” S.D.

Ohio Civ. R. 7.2(a)(2). Although Mr. Lane does not attach a copy

of a proposed sur-reply to the motion, it appears that many of 

his arguments are set forth in the body of the motion. For good

cause shown, the Court will grant Mr. Lane’s motion and will

consider the arguments raised therein as his sur-reply. Thus,

the Court will consider the arguments raised by Mr. Lane in his

motion in addition to those contained in the other briefs filed. 

In their motion in limine, the City of Pickerington and the

Personnel Appeals Board (the “City defendants”) move this Court

for an order “excluding any evidence or testimony at trial

regarding plaintiff’s alleged economic damages, specifically his

lost wages, potential front pay, attorney’s fees in the related

suits, and limiting testimony or evidence related to alleged

costs and prejudgment interest.” (Doc. 66 at 1). The Court

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first examines the argument that Mr. Lane is not entitled to

recover lost wages in this lawsuit. 

A. Lost Wages

There is considerable briefing by the parties pertaining to

whether, or the extent to which, Mr. Lane may recover lost wages

based upon a procedural due process violation. More

specifically, the following issues are raised and argued in the

briefs filed by the parties: (1) whether the applicable law

allows for lost wages in these circumstances; (2) whether an

award of lost wages would result in Mr. Lane receiving double

recovery or is barred by res judicata or the Rooker-Feldman

doctrine; and (3) how an award of lost wages should be

calculated. The Court examines these issues in turn.

1. Whether The Applicable Law Allows For Lost Wages

In These Circumstances

In their motion, the City defendants assert that the

relevant law does not allow Mr. Lane to recover lost wages “if

the allegations [against him] are true, and permits only damages

traceable to the denial of the [pre-disciplinary] hearing.” 

(Doc. 66 at 3). The City defendants assert that, although the

Personnel Appeals Board imposed an alternate form of discipline

on Mr. Lane after the post-disciplinary hearing – by modifying

his termination to a 30-day suspension without pay and demoting

him to a non-supervisory position – it nonetheless “found that

Plaintiff engaged in the behavior of which he was accused and for

which he was terminated.” Id. at 4. The City defendants argue

that, because the allegations against Mr. Lane “were ... found to

be true by a neutral fact finder,” Mr. Lane is barred from

recovering lost wages based on the lack of an adequate predisciplinary hearing. Id. 

Mr. O’Brien, Chief Taylor, and Ms. Fersch filed a separate

brief, in which they “adopt and wholly incorporate the motion in

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limine” filed by the City defendants. (Doc. 70 at 3). Like the

City defendants, the individual defendants also argue that Mr.

Lane is only entitled to nominal damages caused by the predeprivation due process violation. More specifically, the

individual defendants contend that those damages should not

“exceed one dollar.” Id. at 4. 

Mr. Lane argues that, contrary to the arguments set forth by

the defendants, the post-disciplinary hearing demonstrated that

the deprivation of his rights was unjustified. Using a graphic

illustration, Mr. Lane asserts that, if there was a pretermination due process violation and the decision to terminate

him was not justified on the merits, he is entitled to economic

damages. In other words, Mr. Lane argues that, because a

“[c]onstitutional violation caused the job loss ... [he] is

entitled to lost wages as part of his actual damages.” Id. 

Thus, Mr. Lane argues that the defendants are incorrect in their

assertion that he is unable to recover lost wages based on his

Fourteenth Amendment procedural due process claim.

The parties generally agree on the law applicable to Mr.

Lane’s procedural due process claim. As an initial matter, Mr.

Lane is allowed to recover nominal damages for a violation of his

right to procedural due process, even if he is unable to

demonstrate an actual injury. See Carey v. Piphus, 435 U.S. 247

(1978). Because Mr. Lane seeks more than nominal damages, he

must show the existence of an actual injury directly caused by

the violation of his procedural due process rights. See

Wedgewood Ltd. Partnership I v. Township of Liberty, Ohio, 2010

WL 4861434 (S.D. Ohio Nov. 16, 2010), citing Carey, 435 U.S. at

262 and Kendall v. Board of Education, 627 F.2d 1, 6 (6th Cir.

1980), implicitly overruled on other grounds by Duchesne v.

Williams, 849 F.2d 1004 (6th Cir. 1988)(en banc). Actual injury

caused by the violation of Mr. Lane’s procedural due process

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rights is demonstrated as follows: once Mr. Lane establishes the

constitutional deprivation, the burden the shifts to the

defendants to demonstrate that the deprivation of his

constitutional rights did not cause the injury. Kendall, 627

F.2d at n.6, citing Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed.2d 471

(1977). To satisfy this burden, the defendants must show that

there was just cause for the action taken against Mr. Lane, that

is, that the charges against him were true. Id. 

The parties disagree as to whether the defendants’ burden

may be satisfied where, as here, Mr. Lane was subject to a

sanction less severe than termination of his employment after he

was afforded a hearing. Simply stated, the defendants maintain

that this Court’s inquiry should focus on whether it was proper

to impose any discipline on Mr. Lane. They argue that, because

some form of punishment was found to be proper – albeit a

punishment less severe than the termination originally imposed –

the allegations against Mr. Lane were found to be true. Based

upon their position that the allegations against Mr. Lane were

found to be true, the defendants argue that Mr. Lane’s recovery

must be limited to nominal damages. Conversely, Mr. Lane’s

arguments suggest that, instead of focusing on whether any

discipline was found to be proper, the Court’s inquiry should be

focused on whether the result would have been the same if Mr.

Lane had been afforded procedural due process.

Mr. Lane’s position is supported by the relevant law. In

Kendall v. Board of Education, 627 F.2d 1, n.6 (6th Cir. 1980),

the Court of Appeals found that, to meet its burden, the Board of

Education was required to show that it had just cause for the

plaintiff’s dismissal, that is, that its charges against her were

true. Id. at n.6. Thus, as Mr. Lane suggests, this Court is

charged with examining whether the defendants had just cause for

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the punishment which was actually imposed upon him without due

process – not whether any punishment should have been imposed. 

As the Court of Appeals explained in Franklin v. Aycock, 795 F.2d

1253, 1263 (6th Cir. 1986), in order to resolve the issue of

causation, the Court should examine “whether the action taken

without due process is justified or, in other words, whether the

same action would have been taken even if due process has been

afforded.” Id. (emphasis added), citing Carey, 435 U.S. at 260. 

Decisions outside of the Sixth Circuit have also found that

defendants satisfy their burden of proof if they are able to

demonstrate that the same result would have been reached absent

the due process violation. Brewer v. Chauvin, 938 F.2d 860, 864

(8th Cir. 1991) (damages caused by the due process violation will

only include back pay “when there is a finding that the discharge

would not have occurred if the employee’s procedural due process

rights had been observed”); Wheeler v. Mental Health and Mental

Retardation Auth., 752 F.2d 1063, 1071 (5th Cir. 1985)(“back pay

is not recoverable when the employer can show that the discharge

would still have occurred absent procedural defects”); Soto v.

Lord, 693 F. Supp. 9, 21 (S.D.N.Y. 1988)(“The defendant can meet

this burden by proving the same result would have been reached

absent the due process violation”). Stated another way, if the

termination was unjustified, then damages may include an award

for lost wages. See, e.g., Nalls v. Board of Trustees of

Illinois Cmty. College Dist. No. 508 d/b/a City Colleges of

Chicago, 2007 WL 1031155, at *5 (N.D. Ill. Mar. 29, 2007)(“If the

termination was not justified, plaintiff’s damages may include

the consequences of the termination, such as lost pay”). 

As set forth above, when the Personnel Appeals Board

conducted the post-termination hearing, it found that a different

form of discipline – not termination of Mr. Lane’s employment –

was justified. Thus, the defendants are unable to satisfy their

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burden of proving that the result would have been the same if due

process had been afforded. Under these facts, the Personnel

Appeals Board found that the termination was unjustified. 

Consequently, the applicable law allows for lost wages in these

circumstances.

2. Whether An Award of Lost Wages Would Improperly Result In

Double Recovery Or Is Barred By Res Judicata

Or The Rooker-Feldman Doctrine

The defendants also argue that permitting the recovery of

lost wages in this lawsuit would award Mr. Lane “double damages.” 

The defendants explain that, once Mr. Lane was reinstated to his

position, Ohio law required the City of Pickerington to pay him

“for the period of time during which he was illegally excluded

from his position.” (Doc. 66 at 5), quoting Monaghan v. Richley,

32 Ohio St.2d 190, 194 (1972). The defendants assert that,

because the City of Pickerington calculated the wages it owed to

Mr. Lane and tendered payment to him, any award of lost wages

would constitute “double damages.” According to the defendants

“[t]he logic behind the doctrine of res judicata, and to some

extent, the Rooker-Feldman doctrine, prohibit Lane from

challenging the state court decision in this Court.” (Doc. 70 at

5).

In opposition, Mr. Lane claims that the City of Pickerington

has not tendered lost wages to him. He also argues that the lost

wages due to him under Ohio law are separate and distinct from

those owed to him for the violation of his procedural due process

rights. Mr. Lane acknowledges, however, that to the extent that

he receives lost wages under Ohio law, the Ohio law award should

offset his federal award to avoid double recovery. Finally, Mr.

Lane argues that both res judicata and Rooker-Feldman are

inapplicable to this case. 

This Court agrees with Mr. Lane. Although the law is clear

that a plaintiff may not be awarded double recovery, see Hudson

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v. Insteel Indus., Inc., 2001 WL 210586, at *8 (6th Cir. Feb. 23,

2001), citing General Tel. Co., Inc. v. EEOC, 446 U.S. 318, 332

(1980), Mr. Lane’s Ohio law claim for lost wages is not currently

before the Court. Further, the defendants have not provided this

Court with any evidence that Mr. Lane has received payment for

the lost wages at issue. To the contrary, Mr. Lane disputes the

defendants’ contention that they have tendered payment to him for

lost wages. Mr. Lane’s position is supported by the defendants’

reply brief, in which they state that Mr. Lane’s counsel refused

to accept the payment for lost wages. If and when the occasion

arises that Mr. Lane receives payment for lost wages under Ohio

law, he has agreed that the federal law award will need to be

offset in order to avoid double recovery.

Mr. Lane is also correct in his position that neither res

judicata nor the Rooker-Feldman doctrine bar his claim for lost

wages in this case. In its traditional form, “[t]he doctrine of

res judicata or claim preclusion states that a final and valid

judgment on the merits of a claim precludes subsequent action on

that claim.” Knox County Educ. Ass’n v. Knox County Bd. of

Educ., 158 F.3d 361, 376 (6th Cir. 1998). There are generally

four prerequisites to applying the doctrine: that there has been

a final decision on the merits rendered by a court of competent

jurisdiction, that the second action involves the same parties as

the first, that the issue in the second action is the same as the

first, and that the causes of action are the same. See Kane v.

Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). “When the

conditions for res judicata are satisfied, the claim is barred

and no relief can be granted.” Evans v. Franklin County Court of

Common Pleas, 184 F. Supp.2d 707, 712 (S.D. Ohio 2001). Applied

here, the defendants have not shown that there has been a final

decision on the merits concerning Mr. Lane’s claim for lost wages

due to the violation of his procedural due process rights. Thus,

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res judicata does not bar Mr. Lane’s claim for lost wages in this

Court.

Similarly, the Rooker-Feldman doctrine does not bar Mr.

Lane’s claim for lost wages. See District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed.2d

206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct.

149, 68 L. Ed. 362 (1923). That doctrine, explained simply, is

that federal district courts do not function as appellate courts

to review and correct errors occurring during the course of state

court proceedings. As the Court of Appeals has explained, “[t]he

inquiry [under Rooker-Feldman] ... is the source of the injury

the plaintiff alleges in the federal complaint. If the source of

the injury is the state court decision, then the Rooker-Feldman

doctrine would prevent the district court from asserting

jurisdiction.” McCormick v. Braverman, 451 F.3d 382, 292 (6th

Cir. 2006). Here, the source of the injury alleged is not a

state court decision. Indeed, there does not appear to have been

any state court determination regarding the propriety of a lost

wages award for the violation of Mr. Lane’s procedural due

process rights. Thus, Mr. Lane does not any allege that a state

court determination in error. To the contrary, Mr. Lane contends

that the state court decisions were properly decided.

Consequently, the Rooker-Feldman doctrine does not bar this

Court’s jurisdiction to hear Mr. Lane’s claim for lost wages.

3. How An Award Of Lost Wages Should Be Calculated

The parties raise the following issues pertaining to how an

award of lost wages should be calculated: (1) whether an award of

lost wages should be based on the salary Mr. Lane earned before

he was terminated or on the salary he would have earned following

his demotion to the non-supervisory position; (2) whether an

award of lost wages should be reduced based on unemployment

benefits; and (3) whether the award of lost wages should be

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calculated using the aggregate mitigation method or periodic

mitigation method.

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i. Whether An Award Of Lost Wages Should Be Based On

Mr. Lane’s Original Salary Or The Salary

Allocated To Him After His Demotion

The defendants assert that, if this Court determines that

Mr. Lane is entitled to an award of lost wages, that award should

be based on the pay he would have received in the non-supervisory

position following his demotion. The defendants state that,

after the post-deprivation hearing, Mr. Lane was offered the

position of Parks Maintenance Worker I, which earned $19.17 per

hour in 2010, $19.36 per hour in 2011, $19.65 per hour in 2012,

and $20.04 per hour from 2013 through Mr. Lane’s resignation on

August 12, 2014. The defendants maintain that these rates should

be used to calculate Mr. Lane’s lost wages because “[p]ermitting

an award of back pay at the higher supervisory rate would result

in a windfall to [him]....” (Doc. 66 at 6). The defendants also

contend that an award calculated using the supervisory rate would

not “be traceable to the alleged violation of his constitutional

right....” Id. To the contrary, Mr. Lane argues that the Court

should use “his pre-termination salary for the time period

between his termination and his merits hearing before the

[Personnel Appeals Board], when he finally received due process.” 

(Doc. 73 at 12-13). 

Generally speaking, an award of lost wages is to restore the

status quo that the employee would have enjoyed if a wrongful

discharge had not occurred. See Medco Health Solutions of

Columbus West, Ltd. v. Association of Managed Care Pharmacists,

2011 WL 846878, at *1 (N.D. Ohio Mar. 8, 2011), citing McCann

Steek Co. v. NLRB, 570 F.2d 652, 656 (6th Cir. 1978). One court

within this district looked to the Supreme Court’s decision in

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.

Ct. 1487, 84 L. Ed.2d 494 (1985) to resolve the issue of whether

an employee who was discharged without due process was entitled

to an award of back pay. More specifically, the Court in

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Irizarry v. Cleveland Public Library, 727 F. Supp. 357, 364 (N.D.

Ohio 1989) noted that Loudermill requires public employers to

“suspend an employee who posed a threat to the workplace, with

pay, prior to the time that the pretermination hearing is held.” 

Irizarry, 727 F. Supp. at 364 (emphasis in original), citing

Loudermill, 470 U.S. at 544-45. Thus, the Irizarry Court

determined that, pursuant to Loudermill, the proper remedy is to

place the employee “in the position that the Constitution

mandates he be in prior to a pretermination hearing — awaiting

said hearing while receiving pay.” Id. In that case, the Court

found that the plaintiff was entitled to receive back pay running

from the date that his employment was terminated until the

resolution of a proper hearing. Id. In making that decision,

the Irizarry Court also looked to Court of Appeals’ decision in

Duchesne v. Williams, No. 86-1017 (6th Cir, June 16, 1987),

vacated on other grounds, 849 F.2d 1004 (6th Cir. 1988), which

“found that ... remedial action was proper, including the award

of back pay, so as to ‘preserve the status quo until the new

hearing could be held....’” Id., quoting Duchesne, No. 86-1017. 

Allowing “ancillary reinstatement and back pay” until a proper

hearing is completed “maintains the status quo.” DelSignore v.

DiCenzo, 767 F. Supp. 423, 429 (D. Rhode Island 1991)(finding

that, “[e]ven beyond the words of Loudermill, there are

compelling policy reasons for this approach”).

Applying that law to this case, the Court finds that the

award of lost wages should operate to restore the status quo that

Mr. Lane would have enjoyed had his employment not been

terminated without a constitutionally adequate pre-termination

hearing. Adopting the defendants’ approach would effectively

subject Mr. Lane to the demotion prior to a constitutionally

adequate hearing, and it would place him in a different position

than he would have been in prior to the improper termination. 

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Stated simply, applying the salary Mr. Lane would have received

in the non-supervisory position would not preserve the status

quo. Consequently, an award of lost wages should be based on the

salary that Mr. Lane received prior to the termination of his

employment. 

ii. Whether An Award Of Lost Wages Should Be Reduced

Based On Unemployment Benefits

The defendants argue that Ohio law should apply to the

calculation of Mr. Lane’s lost wages. The defendants explain

that Mr. Lane’s unemployment compensation should be deducted from

any back pay award in accordance with Ohio law. In opposition,

Mr. Lane argues that his entitlement to lost wages arose as a

result of the violation of his federal due process rights. Thus,

Mr. Lane asserts that federal law, not state law, applies. Mr.

Lane explains that unemployment compensation is not deducted from

a lost wages award under federal law. Accordingly, Mr. Lane

maintains that the defendants are incorrect in their assertion

that his employment benefits should reduce the amount of his lost

wages award.

Similar to their argument concerning “double damages,” the

defendants conflate two distinct claims – namely, an Ohio law

claim for lost wages and a federal law claim for a violation of

procedural due process. As noted previously, Mr. Lane has not

asserted an Ohio law claim for lost wages in this Court. Thus,

the defendants are incorrect in their assertion that “Mr. Lane’s

entitlement to wages is based on state law based on reinstatement

by the Personnel Appeals Board.” (Doc. 66 at 7). Hence, even if

Ohio law requires reduction of a lost wages award by the amount

of unemployment compensation that Mr. Lane received, that has no

bearing on the federal law claim pending here.

In Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614,

627 (6th Cir. 1983), the Court of Appeals determined the

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unemployment benefits are collateral benefits which should not be

deducted from back pay awards. Id. “The collateral source rule

is a substantive rule of law that bars a tortfeasor from reducing

damages owed to a plaintiff by the amount of recovery the

plaintiff receives from sources that are collateral to the

tortfeasor.” Hamlin v. Charter Tp. of Flint, 165 F.3d 426, 433

(6th Cir. 1999), quoting Jackson v. City of Cookeville, 31 F.3d

1354, 1359 (6th Cir. 1994). While a panel of the Court of

Appeals deciding a case subsequent to Rasimas noted that, were

the issue before it on a case of first impression, it may have

decided the matter differently, that panel nonetheless found that

it was bound by the Rasimas decision. EEOC v. Kentucky State

Police Dept., 80 F.3d 1086, 1100 (6th Cir. 1996). Thus, where an

award of lost wages arises based on a federal law claim, that

award is not reduced by the amount the plaintiff received in

unemployment benefits. See Knafel v. Pepsi-Cola Bottlers of

Akron, Inc., 899 F.2d 1473, 1480 (6th Cir. 1990)(stating that

unemployment benefits are collateral benefits not properly offset

against an award of back pay); see also Thurman v. Yellow Freight

Systems, Inc., 90 F.3d 1160, 1170-71 (6th Cir. 1996)

(“unemployment benefits are collateral benefits which the

district court should disregard in making its award”). Applied

here, Mr. Lane’s lost wages award should not be reduced by the

amount he received in unemployment compensation benefits.

iii. Whether The Lost Wages Award Should Be Calculated 

Using The Aggregate Mitigation Method Or

The Periodic Mitigation Method

The parties dispute whether the lost wages award should be

calculated using the aggregate mitigation method or the periodic

mitigation method. “[T]he aggregate mitigation method compares

the wages plaintiff lost with [his] interim earnings over the

entire recovery period.” Barnett v. PA Consulting Group, 35 F.

Supp.3d 11, 23 (D.C. Cir. 2014). Thus, the aggregate mitigation

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method takes the gross amount that a plaintiff earned since his

employment was terminated and subtracts the entire gross amount

of lost wages accrued. If the plaintiff earned more in his new

position, that excess is subtracted from the lost wages owed to

him. Consequently, the aggregate mitigation method allows

“earnings in mitigating employment in one period (a year) to

reduce wages in other years.” Godinet v. Management and Training

Corp., 2003 WL 42505, at *5 (10th Cir. Jan. 7, 2003). 

 In contrast, the periodic mitigation method looks at

shorter increments of time, such as a single year, and compares

the amount earned in the plaintiff’s new position during that

year to the amount of lost wages during that year. If the

plaintiff earned more during that year than he accrued in lost

wages, then the lost wages award for that particular year is

reduced by the excess earnings. Thus, any excess earnings which

reduce the amount of lost wages owed in a given year do not

reduce the amount of lost wages for any other year. Stated

differently, “[u]nder the periodic mitigation method, if a

plaintiff’s interim earnings in any year exceeded the [lost]

wages” owed to him, “that excess must not be deducted from any

back pay for other years to which the plaintiff is entitled to

relief.” Barnett, 35 F. Supp.3d at 23. The difference between

the aggregate mitigation method and the periodic mitigation

method is demonstrated most clearly where, as here, a plaintiff

was unemployed for some period of time after termination of his

employment and subsequently finds a job more lucrative than his

original position.

 In this case, the defendants argue that the aggregate

mitigation method should be applied, and Mr. Lane asserts that

the periodic mitigation method should be applied. There is at

least some support for Mr. Lane’s position. In Skalka v. Fernald

Environmental Restoration Management Corp., 178 F.3d 414 (6th

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Cir. 1999), the defendant argued that the plaintiff’s back pay

award “should be reduced because several months after his

termination, [the plaintiff] received a higher-paying position

with another company.” Id. at 426. Although the Court of

Appeals noted that the plaintiff would not be entitled to lost

wages for any period during which he earned a salary that was

equal to or more than he would have received in his prior

position, it stated that the “excess” earnings were not to be

subtracted from the lost wages award accrued during his period of

unemployment. Id. 

One court observed that “the law is well-settled in favor of

the periodic mitigation method.” Schroer v. Billington, 2009 WL

1543686 (D.D.C. Apr. 28. 2009); see also Barnett, 35 F. Supp.3d

at 24 (“this Court’s research demonstrates that the Courts in

this district routinely apply the period approach”). The

validity of that method for calculating damages has been longestablished, with the Supreme Court adopting it in NLRB v. SevenUp Bottling Co. of Miami, Inc., 344 U.S. 344, 73 S. Ct. 287

(1953) (computation of back pay award under the National Labor

Relations Act could be made on the basis of the employee’s

earning for segregated quarters, with deductions allowed for net

earnings in other employment during that period). As the

defendants point out, however, the use of the periodic mitigating

method generally takes place in cases addressing the proper back

pay award under the National Labor Relations Act ("NLRA") or

Title VII.

Indeed, this Court is aware of just one decision applying

the periodic mitigation method in the context of a §1983 claim

based on a violation of procedural due process. In Kenrick v.

Jefferson County Board of Education, 13 F.3d 1510 (11th Cir.

1994), the Court noted that it had “not discovered any cases”

applying the periodic mitigation method “in the context of a

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§1983 action....” Id. at 1513. Despite this fact, the Court

applied a “quarterly earnings formula” on the ground that it

“more faithfully serves the remedial objectives of §1983.” Id. 

The Court added that the quarterly earnings formula would promote

a consistent application of back pay awards arising under the

NLRA, Title VII, and §1983. The Court stated, “[w]e think this

consistency is valuable in itself, making the law more simple,

understandable, and predictable.” Id.

The Kenrick decision has not been adopted in the Sixth

Circuit and, as such, it is not binding upon this Court. 

Moreover, as the Court in Kenrick acknowledged, “[t]he question

of which formula to use is not one to which there is clearly a

right or a wrong answer.” Id. In that case, the Eleventh

Circuit chose to decide the issue consistent with NLRA and Title

VII cases. In making that decision, however, the Kenrick Court

failed to discuss the typical, and also well-established,

standard for calculating a back pay award under §1983.

As the United States Supreme Court explained in Memphis

Community School District v. Stachura, 477 U.S. 299, 106 S. Ct.

2537 (1986), “42 U.S.C. §1983 creates a species of tort liability

in favor of persons who are deprived of rights, privileges, or

immunities secured to them by the Constitution.” Id. at 305

(internal quotation and footnote omitted). Thus, when a

plaintiff seeks damages for a violation of constitutional rights

under §1983, the amount of damages is typically determined under

principles from the common law of torts. Such damages are

“designed to provide compensation for the injury caused to

plaintiff by defendant’s breach of duty.” Id. The Supreme Court

explained that, although deterrence is a consideration, the

“basic purpose of §1983 damages is to compensate persons for

injuries that are caused by the deprivation of constitutional

rights.” Id. (internal quotations omitted). 

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In this case, the defendants bear the burden of establishing

that the back pay award should be decreased based upon the

compensation Mr. Lane earned following the deprivation of his

rights. In practical terms, the mitigation duty involves a

reduction from the claimed loss of wages from the employer

against whom the plaintiff is seeking recovery. Because the

Sixth Circuit has yet to adopt the law or reasoning in Kenrick,

the Court finds no basis upon which to deviate from the accepted

calculation of such a damage award in this instance. However, if

Mr. Lane is seeking damages in the form of lost wages only for

the period from his firing to the post-deprivation hearing, and

if he did not earn wages during that period, the entire issue may

be moot. 

B. Attorney’s Fees

The Court now turns to the issue of attorney’s fees. The

defendants acknowledge that, if Mr. Lane prevails on the

procedural due process claim under 42 U.S.C. §1983, he would be

entitled to an award of reasonable attorney’s fees under 42

U.S.C. §1988. The parties dispute, however, whether those

attorney’s fees would allow Mr. Lane to recover attorney’s fees

associated with the mandamus claim and the hearings before the

Personnel Appeals Board. The Court first examines whether

attorney’s fees associated with the mandamus claim are

recoverable. After doing so, the Court examines whether

attorney’s fees associated with the Personnel Appeals Board

hearings are recoverable. 

Mr. Lane asserts that attorney’s fees associated with the

mandamus action are recoverable for two reasons. First, Mr. Lane

argues that the attorney’s fees are recoverable as fee-shifting

under 42 U.S.C. §1988. The parties agree that such attorney’s

fees are recoverable if they are “useful and of a type ordinarily

necessary to advance the civil rights litigation.” See Binta B.

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Ex rel. S.A. v. Gordon, 710 F.3d 608, 630 (6th Cir. 2013) 

Magistrate Judge Abel stated the following with respect to the

mandamus action:

Plaintiff alleges that he was denied access to the

Personnel Appeals Board and his right to a posttermination hearing, but he had an adequate state law

remedy for the alleged deprivation through a mandamus

action. Plaintiff filed a mandamus action and, as a

result of that action, plaintiff received a hearing in

front of the Personnel Appeals Board. Because plaintiff

had an adequate state law remedy for his alleged denial

of post-deprivation due process, he cannot maintain a

Section 1983 claim. 

(Doc. 51 at 15). As noted above, the Court of Appeals affirmed

Magistrate Judge Abel’s grant of summary judgment in favor of the

defendants on this issue.

As noted previously in this Opinion and Order, the ultimate

hearing on the merits conducted by the Personnel Appeals Board

has bearing on Mr. Lane’s pre-deprivation due process claim in

this case. More specifically, because the Personnel Appeals

Board imposed a different form of discipline, which did not

terminate Mr. Lane’s employment, it renders the defendants unable

to demonstrate that the same result would have been reached

absent the procedural due process violation. As this Court

recognized, this determination has a direct impact on Mr. Lane’s

ability to receive more than nominal damages for his procedural

due process claim. That is, it permits him to show the existence

of an actual injury directly caused by the violation of his

procedural due process rights.

However, Mr. Lane was free to bring this lawsuit based on a

violation of his pre-deprivation due process rights without

pursuing a writ of mandamus in state court. Attorney’s fees for

the mandamus action are not allowable simply because the ultimate

hearing on the merits has bearing on this case. Because a

mandamus action is not a type of action “ordinarily necessary” to

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advance a §1983 claim, the Court finds that attorney’s fees for

that action are not available under 42 U.S.C. §1988. For the

same reasons, attorney’s are also unavailable for attending

hearings before the Personnel Appeals Board. While the

determinations made by the Personnel Appeals Board have some

bearing on this case, they are not the type or proceedings

“ordinarily necessary” to advance a §1983 claim. Additionally,

the Court finds no merit in Mr. Lane’s attempt to recover

attorney’s fees for these proceedings as actual damages.

C. Costs, Pre-Judgment Interest, and Punitive Damages

The defendants acknowledge that Mr. Lane has not given them

“any indication ... as to the scope of costs he intends to

requests, but only a statement that he intends to seek such

costs.” (Doc. 75 at 11). Despite these facts, the defendants

have requested that this Court determine the scope of costs

recoverable. This Court declines to issue an advisory opinion on

the matter of costs. The Court will address the matter of costs

once the issue is properly before it for resolution.

Similarly, pre-judgment interest is a post-trial matter not

properly resolved in a motion in limine. Thus, the Court shall

consider the arguments made by the parties with respect to prejudgment interest when they are properly before it for

consideration.

Finally, the defendants argue that Mr. Lane is not entitled

to punitive damages. Mr. Lane argues to the contrary. Because

the arguments regarding punitive damages are not properly before

the Court at this juncture, this issue shall be determined by the

jury after a proper evidentiary hearing and based upon the

evidence presented at trial.

D. Alternate Theory Procedural Due Process Claim

The second motion in limine filed by the City defendants

expressly adopts the portion of the individual defendants’ trial

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brief which argues that Mr. Lane is unable to bring and seek

damages for an additional claim for an alleged violation of his

procedural due process rights based on alleged charges of sexual

harassment. This Court is unaware of anything in the procedural

history of this litigation which would foreclose Mr. Lane from

offering the additional claim for a violation of his procedural

due process rights. Indeed, the Court of Appeals’ decision

suggests that the alleged charges of sexual harassment may give

rise to an alternate theory of recovery. In examining this

issue, the Court of Appeals determined the following:

Lane was denied adequate pre-deprivation due process. 

Under Loudermill, a pre-deprivation hearing must include

an explanation of the employer’s evidence. Lane was

denied the opportunity to see the photographs he was

accused of viewing and retaining, depriving him of a

“meaningful opportunity to tell his side of the story.” 

Loudermill, 470 U.S. 546. Additionally, a jury could

find that Lane was not given notice of all the charges

against him. Lane was notified that of the charge that

he “viewed and retained” offensive images, but he was not

yet notified of any sexual-harassment or hostile-workenvironment charges, even though Taylor stated in a

termination memorandum to the State of Ohio that Lane

“created a hostile working environment that makes the

women feel uneasy when Paul is present,” and stated in a

letter to the Ohio Bureau of Unemployment Compensation

that, “in regards to sexual harassment,” Lane made

comments about masturbation to a female employee, made an

alleged sexual comment to another employee about her

breasts, was allegedly changing his pants in his office

with the door open, and allegedly invaded female

employees’ personal spaces by walking right up to them or

behind them. The lack of notice and an opportunity to be

heard is evident given that Taylor based his decision to

terminate Lane in part on Lane’s “failure to present any

evidence to the contrary at the [pre-termination]

hearing.”

(Doc. 54 at 10-11) (alteration in original) (footnotes omitted). 

Based on the foregoing, at this stage of the litigation, this

Court is unaware of any reason that Mr. Lane’s second claim for a

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violation of his procedural due process rights could not be

presented to the jury. Consequently, this Court will not rule as

a matter of law that Mr. Lane is prohibited from bringing such a

claim, and the second motion in limine will be denied. 

III. Conclusion

For the reasons set forth above, the defendants’ motion in

limine to exclude evidence of economic damages is granted in part

and denied in part (Doc. 66). In making that ruling, the Court

makes the following findings as to the defendants’ motion in

limine:

- the applicable law allows for an award of lost wages in

these circumstances;

– if and when the occasion arises that Mr. Lane receives

payment for lost wages under Ohio law, the federal law

award will need to be offset in order to avoid double

recovery;

- neither res judicata nor the Rooker-Feldman doctrine

bar the claim for lost wages in this case;

– an award of lost wages should be based on the salary

that Mr. Lane received prior to the termination of his

employment;

– the lost wages award should not be reduced by the

amount received in unemployment compensation benefits;

– the lost wages award should be decreased based upon the

compensation Mr. Lane earned following the deprivation of

his rights;

- Mr. Lane is not entitled to recover attorney’s fees

associated with the mandamus claim and the hearings

before the Personnel Appeals Board; and

– the Court will address costs, pre-judgment interest,

and punitive damages once those issues are properly

before it for resolution.

In addition, the defendants’ “motion in limine concerning

additional pre-deprivation claim” is denied. (Doc. 71). Because

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this Court is unaware of anything in the procedural history of

this litigation which would foreclose Mr. Lane from offering the

additional claim for a violation of his procedural due process

rights based on the alleged charges of sexual harassment, this

Court will not rule as a matter of law that Mr. Lane is

prohibited from bringing such a claim. Mr. Lane’s motion for an

oral argument pursuant to Local Rule 7.1(b) or, in the

alternative, motion for leave to file a sur-reply is granted

(Doc. 76). More specifically, the motion is granted to the

extent that Mr. Lane seeks leave to file a sur-reply, and the

arguments raised in the motion constitute his sur-reply and were

considered by this Court in ruling on the pending motions. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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